Trade & Labour Union v Local Gov’t Assoc’n (2014) H&FLR 2015-3

Appearing for the Plaintiff: Jacob Sand (of Gorrissen Federspiel)Appearing for the Defendant: Y. Frederiksen (instructors not known)Appearing for the Danish Government: C. Thorning and M. Wolff (instructors not known)Appearing for the European Commission: M. Clausen and D. Martin (instructors not known)

Facts: Mr Karsten Kaltoft was employed from 1 November 1996 by the Municipality of Billund as a childminder, initially on a fixed term contract and subsequently on a permanent contract. It is common ground that at all material times the plaintiff was obese within the definition promulgated by the World Health Organization. In November 2010 the Municipality terminated Mr Kaltoft’s employment, asserting that this followed a reduction in the number of children requiring care. Mr Kaltoft considered that his dismissal had been motivated by his obesity. The plaintiff brought proceedings on his behalf against the defendant, which represented his employer.

The trial court stayed the proceedings and sought a preliminary ruling from the European Court of Justice as to whether (a) it was unlawful for a government employer to discriminate on the basis of obesity and (b) obesity can be deemed to be a disability and, if so, in what circumstances will that disability be protected from discrimination: Fag og Arbejde v Kommunernes Landsforening (Kolding District Court, 25 June 2013, unreported).

Held: referring the matter back to the trial court, that –

1. Neither Directive 2000/78 nor the Charter of Fundamental Rights of the European Union can be extended by analogy beyond the grounds of discrimination they identify. Accordingly, European law does not include a general principle of non-discrimination in employment based on obesity.

2. ‘Disability’ in Directive 2000/78 refers to a limitation resulting from (inter alia) physical impairment which in combination with other barriers may hinder the worker’s participation in employment on an equal footing with other workers. Because obesity does not necessarily pose a limitation it is not in itself a disability (1). However, should a worker’s obesity give rise to long-term limitations which may hinder their capacity to work on an equal footing with other workers, it will then constitute a disability pursuant to Directive 2000/78

(1) Cf McDuffy v Interstate Distributor Co. (Multnomah Co. Cir. Ct., 2005), Seattle Times, 7 November 2005. In this case, a 550-pound truck driver claimed to have been wrongfully suspended from duty based on his weight. He was awarded $109,000.00 after he successfully demonstrated to the court that, regardless of his weight, he was able to perform his duties with only minor limitations.